and to set it aside, as was prayed for in Civil Action No. 2300 in this court, which action was dismissed. He merely asks that the original defendants be enjoined from completing it. The action at Civil Action No. 2300 (to which "Fort Pitt" was a party defendant) was dismissed because we were of the opinion that plaintiff had not complied with conditions precedent to such a suit, as prescribed in Article IX, Section 11, of the mortgage indenture.
In the present suit, plaintiff still has not complied, but offers in excuse for such non-compliance, that he has been refused access to lists of stockholders and bond-holders of Pittsburgh, and that the "Indenture Trustee" has refused to act. On that phase of the case, we need pass no judgment, so far as concerns the intervenor suit by "Fort Pitt."
It is our opinion that the sale agreement for the Fort Pitt Hotel property is valid and enforceable. It was approved, not only by the directors of that company, but also consented to by all the voting trustees. Our conclusion is that should any holder of stock or securities of "Pittsburgh" be dissatisfied with the action of the directors, or shareholders, his action is against them. He cannot invalidate the agreement of sale. The fact of the pendency of plaintiff's suit is not a valid reason for failure to complete the sale to "Fort Pitt."
The other questions which plaintiff raises as to the proper disposition of the proceeds of sale are not proper grounds for refusing specific performance of the agreement for the conveyance of the property sold to "Fort Pitt". If "Pittsburgh" has not paid sufficient money to the trustee for a release of the Fort Pitt property, it can be compelled to do so. That is not a matter as to which "Fort Pitt" has any obligation, and will not bar its right to specific performance of its contract for the purchase of the Fort Pitt Hotel property. If any of the original defendants are liable for money damages, that is a matter between the plaintiff and the defendants, and does not concern the "Fort Pitt." None of the contentions of the plaintiff justify withholding the conveyance of a good title to "Fort Pitt."
In any event, we are of the opinion that plaintiff is barred by laches from interfering with specific performance of the agreement of sale of the Fort Pitt Hotel property to "Fort Pitt", and the release thereof from the lien of mortgage of the "Indenture Trustee." The agreement of sale was made on May 2, 1940. "Fort Pitt" has made payments in accordance with the sale contract, and is now entitled to a deed for the property.
Plaintiff's action No. 2300 C.A. was filed October 31, 1942. That case included "Fort Pitt" as a party defendant, and was dismissed August 3, 1943. The instant case was filed February 25, 1944, and did not include "Fort Pitt" as a party defendant.
"Fort Pitt" went into possession of the Fort Pitt Hotel property in June 1940, and during the ensuing four years has materially altered its position, not only by making the payments required by the sale agreement, but by expending, in addition to the rehabilitation required by the agreement, some $185,000 in rehabilitation of the property.
Plaintiff had notice of this sale as early as May 15, 1940, by letter from "Pittsburgh." See Par. 41 of his complaint and letter (Exhibit A) attached thereto. He did nothing thereafter until he filed his action at No. 2300 C.A. in this court. Upon the dismissal of that suit August 3, 1943, he took no further action until the instant case was filed. We therefore conclude that "Fort Pitt" is entitled to summary judgment in this case for specific performance of its contract.
The only other question raised is whether or not the $50,000 paid on the purchase price and added to the working capital of "Pittsburgh" should not have been paid to the "Indenture Trustee." As "Pittsburgh" has expressed its readiness and willingness to pay the additional $50,000 at this time to the "Indenture Trustee", we will decree that such payment be made.
Counsel for "Fort Pitt" may submit an order for summary judgment in accordance with this opinion, on notice to counsel to the other parties.
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